Friday, March 26, 2021

Jaquez v. Saul - Role of the Court and Part-Time Work

Jaquez (pronounced hockez) brought an action in the Southern District of California.  As he did before the Appeals Council, Jaquez challenged the sufficiency and reliability of the vocational evidence.  Because vocational experts testify on the fly without any knowledge of residual functional capacity and little evidence of age, education, and past work, they operate at a disadvantage.  Vocational experts fly by the seat of their pants.  What would ordinary people do to make in excess of $100,000 per year to testify half days four days a week?  They answer the questions without looking it up.

Jaquez knocked out two of the three occupations identified by the vocational expert.  That left usher ostensibly representing 90,200 jobs in the national economy.  The O*NET OnLine stated that 90% of ushers, lobby attendants, and ticket takers worked less than 40 hours per week.  How much less?  The O*NET does not say.  

The District Court held that the ALJ may rely on work that is not substantial gainful activity as evidence that Jaquez could engage in substantial gainful activity.  The statute focuses on exactly that, the inability to engage in any substantial gainful activity.  The regulation defines disability as the inability to do any substantial gainful activity.  The ability to perform work that is not substantial gainful activity is not evidence that a person would perform substantial gainful activity in significant numbers of jobs in the national economy.  The District Court concluded that evidence of less than 40 hours per week does not dispute that usher represents substantial gainful activity.  The Court assumed that the part-time work represented substantial gainful activity without any affirmative evidence that ushers worked 30+ hours per week on average over a year.  

The Ninth Circuit reversed.  The Court held:

POMS DI 10501.015, tbl. 2 (calendar year 2016) [...] in conjunction with Jaquez's evidence, suggests that there may not be a significant number of usher jobs in the national economy constituting substantial gainful employment. Specifically, Jaquez's brief before the Appeals Council stated that the median pay for ushers was $9.58 per hour. Consequently, Jaquez would need to work roughly 29.49 hours per week to meet the manual's threshold. The record does not reveal what percentage of the usher jobs identified by the VE are available for at least 29.49 hours per week. All we know is that 10% of ushers, (or 9,020 ushers) work at least forty hours per week.

The other evidence referenced by the Court was now before the ALJ but presented to the Appeals Council.  The Court followed circuit precedent to allow consideration of that evidence under the substantial evidence test.  The Court emphasized that it did not have the position to engage in the fact-finding to assess whether ushers represented substantial gainful activity, the Court remanded for further proceedings.  

The pregnant question is whether part-time work ever counts at step five of the sequential evaluation process.  Social Security Ruling 96-8p states that a person must have a full-time capacity but does not describe the target work.  It would truly represent an odd circumstance where a person capable of 30 hours per week of work and limited to occasional use of the hands would be found disabled under the ruling but that a person capable of 40 hours per week and having the same universe of jobs available would be found not disabled.  The range of work is a mere 10% larger in this case and that 10% does not represent a significant number of jobs.  

The watershed on the full-time and part-time problem at steps four and five of the sequential evaluation process came in Social Security Ruling 96-8p.  Footnote 2 states that a capacity past relevant part-time work (that meets the three-part test) will result in a step four denial.  The sentence to which the agency attached the footnote reads:
Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule.
We still have the Jaquez problem.  If a person has a capacity for a narrow range of full-time work that does not represent a significant number of jobs, can the agency fill in that number with part-time work that is part-time work?  The Commissioner answered that question when it amended the adverse vocational profile regulations.  The Commissioner explains
the language in previous §§ 404.1562 and 416.962 needed to be updated to be consistent with our current rules and policies. For example, the last sentence of the paragraph before the example spoke about the ability to do other work ‘‘on a full-time or reasonably regular part-time basis.’’ However, in SSR 96–8p, we explain that at step 5 we consider only full-time work when we consider other work you are able to do. (See 61 FR 34474, 34475 (July 2, 1996).)
What was implicit in SSR 96-8p is not explicit in this publication in the Federal Register, the agency considers only full-time work at step five of the sequential evaluation process.  

This understanding of SSR 96-8p was not before the District Court.  My bad, I found it halfway through the Circuit Court briefing process.  The Ninth Circuit did not address the deletion of reasonably regular part-time work but it is clear that the courts should not assume that part-time work is substantial gainful activity.  The discussion by the District Court:
See Wright v. Colvin, No. CV 12-1893, SP, 2014 WL 5456044, at *6 (C.D. Cal. Oct. 27, 2014) (Ninth Circuit has not directly addressed issue of whether ALJ can consider part-time work on step five); De La Cruz v. Astrue, No. 08cv782 DLB, 2009 WL 1530157, at *9 (E.D. Cal. May 28, 2009) ("While it is not necessarily clear in the Ninth Circuit whether part-time work constitutes `other work' at step five . . . .") In Wright, the plaintiff argued that the VE impermissibly included part time work in the job numbers yet the VE did not testify to that fact and Plaintiff did not pose the question to the VE. Wright, 2014 WL 5456044, at *6. Alternatively, even if the VE considered part-time jobs, the court noted there is no legal authority stating that the ALJ cannot consider part-time work in step five. Id. The district court in Wright, relying on other circuits that have held that the ALJ may consider part-time jobs, concluded that the ALJ's step five determination was supported by substantial evidence. Id. (citing Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 450, n. 6 (2d Cir. 2012) ("We decline to create a per se rule prohibiting an ALJ from considering part-time positions."); Liskowitz v. Astrue, 559 F.3d 736, 745 (7th Cir. 2009) ("[A] VE may . . . testify as to the number of jobs that a claimant can perform without specifically identifying the percentage of those jobs that are part-time" and explaining that the regulations do not state "that a VE may permissibly testify only as to the availability of full-time jobs"); and King v. Astrue, No. C 09-5322-MEJ, 2011 WL 1791553, at *19 (N.D. Cal. May 10, 2011) (rejecting plaintiff's argument that the VE had to distinguish between full-time and part-time jobs because the regulations only require that a significant number of jobs exist)). Other district courts have also found that it was not improper for the ALJ to consider other work that is available on a part-time basis. See Angelica E. v. Saul, Case No. 18cv1025-MAA, 2019 WL 3531272, at *4 (C.D. Cal. Aug. 2, 2019) (rejecting argument that usher jobs, which are mostly part-time, do not involve substantial gainful activity because the regulations state that part time work can be substantial gainful activity); Pitts v. Colvin, Civil Action No. 16-434, 2016 WL 6217068, at *4 (W.D. Pa. Oct. 25, 2016) (not improper for ALJ to consider election clerk position even it can be performed on a part-time basis).
that's all wrong.  Wright, Brault, Liskowitz, King, Angelica E., Pitts, and other cases of that ilk -- wrong.  They do not address the August 26, 2003, deletion of reasonably regular part-time work and the explanation that even reasonably regular part-time work is not substantial gainful activity.  The Commissioner construes the statute in the first instance and that construction is entitled to Chevron deference.  


Suggested Citation:

Lawrence Rohlfing, Jaquez v. Saul - Role of the Court and Part-Time Work, California Social Security Attorney (March 26, 2021)

Saturday, March 20, 2021

Is Eliminating the Ability to Communicate in English Entitled to Chevron Deference?

 As we always do, we start with the statute.  Social Security Act section 223(d)(2)(A) states that:

An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. 

42 U.S.C. § 423(d)(2)(A) (emphasis added). Congress gives broad authority to the Commissioner to construe the statute.  Social Security Act section 205(a) states that:

The Commissioner of Social Security shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this title, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.

42 U.S.C. § 405(a) (emphasis added).  Prior to February 25, 2020, the Commissioner defined one of the educational categories as:

Inability to communicate in English. Since the ability to speak, read and understand English is generally learned or increased at school, we may consider this an educational factor. Because English is the dominant language of the country, it may be difficult for someone who doesn't speak and understand English to do a job, regardless of the amount of education the person may have in another language. Therefore, we consider a person's ability to communicate in English when we evaluate what work, if any, he or she can do. It generally doesn't matter what other language a person may be fluent in.

20 C.F.R. § 404.1564(b)(5) (2019).  Paragraph (b)(5) is gone.  20 C.F.R. § 404.1564(b)(5) (2020).  The Commissioner explains:

When this final rule becomes effective, we will no longer consider whether an individual is able to communicate in English at the fifth and final step of the sequential evaluation process (step 5).

85 Fed. Reg. 10586, 10587 (Feb. 25, 2020)

Can an administrative agency promulgate whatever regulations it wants?  No.  The courts determine what the law is.  The courts defer to the Commissioner’s rules and regulations interpreting the statute.  Chevron USA Inc. v. NRDCChevron establishes a two-step framework:  (1) has Congress directly spoken on the issue; and (2) is the interpretation based on a permissible construction of the statute.  467 U.S. 837, 842-44. 

The statute requires the agency to consider education.  That explicit mandate requires that: consideration of the ability to engage in substantial gainful activity in light of age, education, and work experience.  To effectuate that mandate, the Commissioner promulgated the medical-vocational guidelines in 1978.  The dearth of education makes no difference for younger individuals below the age of 45.  Educational disadvantages for literacy kick in at age 45 and still do.  Appendix 2, Rules 201.17, 202.09, 203.01.  Limited education matters at advanced age and the absence of past relevant work.  20 C.F.R. § 404.1562(b), Appendix 2, Rule 203.10.  Clearly education matters and matters more the older the claimant has gotten. 

The comments and the responses are directed at a misperception of xenophobia or racism; that the rules about the ability to communicate in English paint non-English speakers as non-contributory, unable to work, or some other negative connotation.  The guidelines never did what the commenters or the agency presents.  Rather, the rules treated non-English speakers as if they were five years older.  But the Commissioner is entitled to latitude and that warrants examination in the micro of a single person, not the macro of every non-English speaker in the nation. 

Assume a person that is 50 years old, limited to light work, and can occasionally use the hands for handling and fingering.  The person does not read and write in English and fumbles through oral English.  By fumbles, I mean well enough to get by but not well enough to conduct someone else’s business or the bona fide occupational qualifications require dealing with people.  The person has a high school education in another country.  We know the drill, the vocational expert will likely identify usher, counter clerk, and furniture-rental clerk. 

Those jobs do not exist in significant numbers but furniture-rental clerk is a mess thanks in large part to erroneous industry designations in Job Browser Pro.  Back to the main point, can a person unable to communicate in English or illiterate in English perform those jobs?  The agency continues is illicit affair with the DOT/SCO, so we indulge that fantasy – that the DOT/SCO is reliable when contradicted by the O*NET just because the Department of Labor says so, after all Labor publishes(ed) both.  First, it is not clear whether the DOT describes bona fide occupational qualifications or essential job functions.  Essential job functions is part of the ADA analysis.  The distinction makes no difference under Social Security Ruling 00-1c.  I assume BFOQ. 

Ushers, counter clerks, and furniture-rental consultants require frequent talking and hearing.  The SCO defines those concepts:

TALKING: Frequently

Expressing or exchanging ideas by means of the spoken word to impart oral information to clients or to the public and to convey detailed spoken instructions to other workers accurately, loudly, or quickly. In Part A, the rating for the Talking component appears second in the second set of Physical Demand ratings under the vertical heading Ta.

HEARING: Frequently

Perceiving the nature of sounds by ear. In Part A, the rating for the Hearing component appears third in the second set of Physical Demand ratings under the vertical heading He.

SCO Appendix C. 

Ushers require significant worker functions of serving people:  attending the needs or requests of people or animals or the expressed or implicit wishes of people with immediate response involved. 

Counter clerks require significant worker functions of speaking  or signaling people:  talking with and signaling people to convey or exchange information including giving assignments and directions to helpers or assistants. 

Furniture-rental consultants require significant worker functions of persuading people: influencing others in favor of a product, service, or point of view.  DICOT Appendix B. 

Ushers and counter clerks require below average verbal aptitude but that excludes the bottom 10% of the population.  Furniture-rental consultants require average verbal aptitude.  DICOT dataset, aptitudes, Revised Handbook for Analyzing Jobs. 

All three occupations require dealing with people: involves interpersonal relationships in job situations beyond receiving work instructions. DICOT dataset, temperaments, Revised Handbook for Analyzing Jobs. 

Just based on the DOT/SCO, the inability to communicate in English precludes those jobs.  Having never receive the education to learn English, that person lacks the BFOQ to perform other work as an usher, counter clerk, or furniture-rental consultant in large portions of the country.  I don’t speak enough Spanish to communicate effectively with someone, which upsets my Spanish-speaking wife. I project my own failing on the majority of the American population.  Not understanding English is a detriment. 

Consider a second hypothetical person with the same age, education, and work experience with a limitation to no fast-paced work such as production or packing, and no standing more than six hours in a day.  That set of limitations wipes out production and packing work.  The standing/walking limitation precludes maids and janitors (all the cleaning occupations, it is a lie that they sit two hours a day).  That leaves clerical and other service related industries. 

While speaking English may not be a BFOQ for production, packing, inspecting, or cleaning, the inability to read and write proficiently in English eliminates clerical and paperwork related jobs.   

Taking office helper as an example, office helpers require copying data: transcribing, entering, or posting data.  Office helpers require occasional talking and hearing.  Office helpers require below average verbal aptitude.  Office helpers require the ability to perform a variety of duties involving frequent changes of tasks involving different aptitudes, technologies, procedures, working conditions, physical demands, or degrees of attentiveness without loss of efficiency or composure – the involvement of the worker in two or more work fields may be a clue that this temperament is required.  The absence of the ability to read and write or to communicate orally in English will eliminate jobs. 

The Occupational Outlook Handbook reinforces that concept:  the occupational group of couriers and messengers typically requires a high school diploma or equivalent.  The employment projections state that 8.1% of couriers and messengers lack a high school education or equivalent.  The O*NET informs that couriers and messengers deal with external customers in 77% of jobs.  The O*NET Resource Center states that couriers and messengers do not require a high school diploma or equivalent in 3.28% of jobs.  Whether a diploma in another language suffices to fill the education requirements of these jobs does not answer the BFOQ question of dealing with people in a time constrained business environment. 

What the Commissioner has done is take administrative notice that the inability to speak and understand English or the inability to communicate in English will not preclude work under rules 201.17, 202.09, and 203.01.  Fair enough.  In the broad scheme of work, the inability to communicate either orally or in writing in English is not a death knell to employability.

In the micro of an individual claim, a litigant must be given adequate opportunity to respond to the Commissioner’s taking of official or administrative notice.  Heckler v. Campbell.  The individualized consideration of the particulars of any one case matters in some cases.  The Commissioner may be right – perhaps most jobs do not require either oral or written English proficiency.  But the Commissioner is clearly wrong – some jobs do require either oral or written English proficiency. 

Based on Campbell and the nature of the rulemaking promulgated by the Commissioner in amending the education regulation and three rules as a matter of administrative notice of facts, the courts should not defer to the exclusion of proficiency in either oral or written English in every case as a matter of law.  That broad conduct and preclusion of evidence that in this case it matters does not warrant Chevron deference.    


Suggested Citation:

Lawrence Rohlfing, Is Eliminating the Ability to Communicate in English Entitled to Chevron Deference?, California Social Security Attorney (March 20, 2021)

Thursday, March 11, 2021

Vocational Experts are Trained by SSA to Give Bogus Testimony

 On the Social Security Hearings and Appeals, Becoming a Vocational Expert web page, SSA has an orientation package for the cadre of vocational experts.  The content of the Vocational Expert Orientation is as illuminating as it is shocking.  

Page 13 defines exertion levels of sedentary, light, and medium exertion.  SSA tells vocational experts that sedentary work requires sitting six hours and standing/walking two hours; light and medium work require standing/walking six hours.  Those are not the definitions of sedentary, light, and medium work out of the DOT or the regulations.  Sedentary work does not have a maximum sitting nor do light or medium work have a maximum of standing/walking.  To state otherwise is wrong, just plain factually wrong not just based on the DOT and regulations but based on Department of Labor definitions and of course the Occupational Requirements Survey.  

Pages 22 and 23 present a hypothetical questions and occupation/job samples.  The hypothetical describes a younger individual with a high school education limited to light work, four hours of standing/walking, using a cane to ambulate more than a block, capable of occasional public contact, no strict production requirements, limited to simple instructions, no more than occasional pulmonary irritants, and no dangerous work environments.  The sample occupations and job numbers caused outrage:

  • Inspector/hand packager; Dictionary of Occupational Titles (DOT) # 559.687-074; Specific Vocational Preparation (SVP) level 2 and light; 82,150 jobs nationally and 1,362 jobs regionally 
  • Assembler, small parts; DOT # 076-684-022; SVP 2 and light; 229,240 jobs nationally and 1,550 jobs regionally 
  • Mailroom clerk; DOT # 209.687-036; SVP 2 and light; 119,960 jobs nationally and 2,120 jobs regionally

Let's take the occupations in reverse order, just for fun.  Mailroom clerk has a main title of mail clerk but does travel under the alternate title of mailroom clerk.  The DOT number is actually 209.687-026.  So much for accuracy.  There is no 209.687-036 occupation in the DOT.  Sloppy.  Mail clerk requires reasoning level 3.  It is not simple.  The 14 DOT codes in Mail Clerks and Mail Machine Operators, except Postal Service (SOC 41-9051) contains six light, unskilled codes.  Those 14 DOT codes currently make up 88,400 jobs per the OOH.  Those 14 DOT codes make up 83,580 jobs per the OES.  In 2010, the OES reported 119,960 jobs for Mail Clerks.  Not only did SSA use 10-year-old data, SSA endorsed the identification of the entire occupational group as representing jobs for the single occupation.  

Small parts assembler is not better.  Small products assembler I carries the DOT code 706.684-022.  There is no 076.684-022 DOT code.  Again, sloppy.  The DOT describes small products assembler as performing repetitive tasks on an assembly line.  There is clearly a strict production requirement on the assembly line.  The 1,590 DOT codes in Production Workers, All Other (SOC 51-9199) contains 405 light, unskilled codes.  Those 1,590 DOT codes currently make up 238,600 jobs per the OOH.   Those 1,590 DOT codes currently make up  222,230 jobs per the OES.  In 2010, the OES reported 229,240 jobs for Production Workers.  SSA again used 10-year-old data and endorsed the identification of the entire occupational group as representing jobs for the single occupation.  

Inspector/hand packager does have the correct DOT code reported.  The 782 DOT codes in Inspectors, Testers, Sorters, Samplers, and Weighers contains 135 light, unskilled codes.  Those 782 DOT codes currently make up 590,100 jobs per the OOH.  Those 782 DOT codes make up 576,950 jobs per the OES.  In 2010, the OES reported 410,750 jobs for Inspectors.  SSA did not report the entire occupational group of jobs for this occupation.

Mail clerks require short-term on-the-job training.  Production workers and inspectors, testers require moderate-term on-the-job training.  Those jobs are typically skilled or semi-skilled (more than 30 days and up to one year of education, training, and experience).  The ORS does not provide a basis for any of the occupations in production workers and inspectors, testers as standing four hours or less in a day; less than half of mail clerks limit standing/walking to four hours.  These occupations are absurd examples for the sample hypothetical.  

It does get worse.  The orientation repeats the incorrect characterization of the DOT as listing the maximum requirements of occupations as generally performed on page 27.  That comes out of SSR 00-4p.  It is also wrong.  The DOT says:

Occupational definitions in the DOT are written to reflect the most typical characteristics of a job as it occurs in the American economy. Task element statements in the definitions may not always coincide with the way work is performed in particular establishments or localities.

I do not know what maximum of generally performed means.  It is nonsense.  The most typical characteristics describes either an average, median, or plurality of the jobs.  The maximum of the work as generally performed is an oxymoron and wrong.  

I have wondered on occasional where SSA hid the Kool-Aid that the VEs had consumed.  Here it is as an orientation for inaccuracy, statistical foolery, and just plain nonsense.  SSA should take this ridiculous orientation down and replace it with statements and examples that encourage reliable testimony.  On its way, SSA should rescind SSR 00-4p and replace it with a direction that requires the ALJ to adduce the foundation for VE testimony.  The courts are to blame for that current state of affairs.  


Suggested Citation:

Lawrence Rohlfing, Vocational Experts are Trained by SSA to Give Bogus Testimony, California Social Security Attorney (March 11, 2021) 

Thursday, March 4, 2021

Appendix 2, § 202.00(c) -- Significant Range and Application to Limited Education

Lounsburry v. Barnhart held that a person limited to light work and over the age of 55 required more than one occupation to satisfy the "significant range of work" requirement of Appendix 2, Rule 202.00(c).  Two scenarios arise under Rule 202.00(c) that warrant discussion, what constitutes a significant range getting resolved by published opinion and whether the rule applies to a person with a limited education resolved by joint motion.  

Courts disagreed whether two occupations represented a range of work.  Daniel v. Colvin held that two occupations do not represent a significant range of work for Lounsburry purposes.  Susan M. v. Berryhill  held that two occupations did represent a significant range of work for Lounsburry purposes.  The district courts had a clear conflict.  The Ninth Circuit reversed in Maxwell v. SaulLounsburry relies on and Maxwell cites the definition of range of work in Social Security Ruling 83-10 as all or substantially all occupations.  Maxwell relies on the dictionary definitions of range as a series between limits and significant as a "noticeably or measurably large amount."  Maxwell reversed and awarded benefits after Maxwell reached 55 year of age.  

Another question that arises concerns the 55+ year old claimant that has a limited education.  Rule 202.07 applies to a person with a high school education or more.  Footnote 2 to the rule points to subsection 202.00(c).  Rule 202.03 applies for a claimant with a limited education and the question turns on transferability of skills.  Footnote 1 to the rule points to subsection 202.00(f).  Subsection (f) requires very little, if any, vocational adjustment for a claimant over 60.  The question is whether the ALJ must adduce evidence of the ability to perform a significant range of skilled or semi-skilled work in order to find transferability of skills for an individual over the age of 55 and limited to light exertion, even if the claimant has a high school education, the regulations do not permit the ALJ to find the presence of transferable skills for an individual with a limited education.

We start with the text of subsection 202.00(c):  

However, for individuals of advanced age who can no longer perform vocationally relevant past work and who have a history of unskilled work experience, or who have only skills that are not readily transferable to a significant range of semi-skilled or skilled work that is within the individual's functional capacity, or who have no work experience, the limitations in vocational adaptability represented by functional restriction to light work warrant a finding of disabled.

This text does not differentiate between high school, more than high school, limited education, or marginal education.  The subsection continues: 

Ordinarily, even a high school education or more which was completed in the remote past will have little positive impact on effecting a vocational adjustment unless relevant work experience reflects use of such education.

Introducing the positive impact of a high school education or more does not change the outcome -- that education has little impact on vocational adjustment.  

Getting older, having less education, having an unskilled or no work background constitute vocational adversities under section 204.00.  Subsection (c) applies to all claimants of advanced age and even the introduction of greater education does not remove application of the favorable grid rule to the claim.  

Martinez v. Colvin was wrong.  The Ninth Circuit granted a joint motion for remand and the district court complied.  

The Medical-Vocational Guidelines constitute a tangle web.  We must take care in unraveling that tangled web as we see in the definition of significant range and application of subsection 202.00(c) to people with less than a high school education.   


Suggested Citation:

Lawrence Rohlfing, Appendix 2, § 202.00(c) -- Significant Range and Application to Limited Education, California Social Security Attorney (March 4, 2021)